Sep. 11, 2013
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Nick Rhoades / The Des Moines Register

by Grant Rodgers, The Des Moines Register

by Grant Rodgers, The Des Moines Register

DES MOINES, Iowa -- Arguments over whether an Iowa man can be charged with criminal transmission of HIV, even though he used a condom during sex, unfolded before the Iowa Court of Appeals Wednesday.

Nick Rhoades, 39, pleaded guilty in 2009 to criminal transmission of HIV, a felony under Iowa law. Rhoades is gay and HIV-positive and didn't tell a man he had met about his positive status.

Rhoades and the other man had protected sex. Rhoades was arrested and charged after the man reported the incident to police.

The three appeals court judges, hearing oral arguments in the case, asked Rhoades' attorney to contrast the case from other Iowa cases on HIV transmission laws.

Rhoades' case is unlike any other heard by another Iowa court, said Christopher Clark, a senior staff attorney with Lambda Legal, an organization that advocates for gays and lesbians that is representing Rhoades. At issue in Clark's arguments were both the protected sex Rhoades had with the man and an oral sex act the man performed on Rhoades where a condom wasn't used.

In a 2006 Iowa Supreme Court case, the court upheld an HIV-positive man's conviction after he exposed a partner to his semen during oral sex. The court's ruling in that case, however, shouldn't be applied to Rhoades' case, Clark said.

Both Rhoades and his partner agree that Rhoades didn't ejaculate during the oral sex act, Clark said. Also, the amount of HIV in Rhoades' blood was so low it couldn't be detected by his doctor, he said.

Those factors combined make the science supporting Rhoades' conviction shaky, Clark told the judges. The Centers for Disease Control and Prevention has said there's less risk of transmitting the virus through oral sex, and no medical group has ever issued a statement on facts similar to the Rhoades case, he said.

"There's no sort of scientific evidence or consensus around the fact that oral sex without ejaculation could result in the transmission."

In arguments for the state, Assistant Iowa Attorney General Kevin Cmelik said that the law was designed to ensure that people were informed about their partners' status before deciding to have sex.

"Ultimately this case is about disclosure; the statute's about disclosure," he said. "It says to a partner who is infected with the HIV virus, 'Tell the person that you're going to have sex with you have the virus. Let them make the informed choice as to whether they want to participate in an act of sex, either protected or unprotected.'"

In 2001, the court ruled that a person could be charged with the crime even if ejaculation did not occur during sex.

That case is a legal basis to disregard Rhoades' claims that using a condom means he didn't commit a crime, Cmelik argued. Having sex while not disclosing his HIV-positive status was enough of a risk to be charged, he said.